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Saturday, December 26, 2009

“We have sealed the deal. [The Copenhagen Accord] is a beginning – an essential beginning.” So stated UN Secretary-General, Ban Ki Moon at the close of last week’s Climate Change Conference in Copenhagen. Others were not so charitable. Sudanese official, Lumumba Stanislas Dia-ping, called it "a suicide pact" while Jeremy Hobbs, Executive Director of Oxfam International said it was “a triumph of spin over substance”. In the end, the conference did not even formally adopt the accord, only agreeing to “take note” of the agreement.

This is not how it was supposed to be. Ever since the 2007 Bali Climate Change Conference where participating nations decided on a two-year process to a binding agreement, all eyes and hopes focused on Copenhagen. Not even the noises coming out of Washington and Beijing about a political deal being the only possible outcome, could dim expectations. “We will not die quietly” declared the Maldives President Mohamed Nasheed.

In preparation, African negotiators developed a common position based on fidelity to the Kyoto protocol, the only international instrument that imposed legally binding emissions reduction targets on the developed countries, and its extension beyond 2012; and the mandate of the Bali Action Plan. They demanded that rich economies reduce emissions to at least 40% below 1990 levels by 2020 and at least 80% below 1990 levels by 2050. The developing world’s efforts would be voluntary and contingent on transfer of technology, capacity-building and financing at $200 billion a year by 2020. A further $67 billion a year would help them adapt to the changing climate. (At a meeting with their Asian, Caribbean and Pacific counterparts, the figure was upped to 1.5% of rich country GDP by 2015 over and above the 0.7% already promised as Overseas Development Assistance.)

At Copenhagen, however, African resolve caved under pressure from the West. Head of the joint delegation, Ethiopian Prime Minister Meles Zenawi, who had declared his readiness "to walk out of any negotiations that threaten to be another rape of our continent” now accepted the West's offer of a start-up fund of $30 billion over the next three years rising to $100 billion by 2020 - almost a third of what the Common Position had demanded. "Because we have more to lose, we should compromise and be flexible with (other countries)," he whimpered.

All pretense at a common front was abandoned on the last day of the Conference. As negotiations dragged on, 2004 Nobel Peace Prize winner and respected environmentalist Wangari Maathai warned against signing a deal that was neither “inclusive” nor negotiated in a “transparent” manner. Then came word of a deal made in private by just 5 countries, including South Africa, one of the nations selected to spearhead Africa's Common Position.

The “Copenhagen Accord”, however, was exactly what Africa did not want. It dispensed with the demand for a legally binding agreement, opting for a voluntary emissions reductions regime. There was no extension of Kyoto beyond 2012 meaning that industrialized countries would not be bound to cut emissions after that year. Developing countries would only get a fraction of the funds they needed to adapt and find a cleaner path to development and there were no guarantees that the money wouldn’t come out of existing aid commitments which meant aid for education and health care could be diverted to pay for flood defenses. As Tuvalu negotiator Ian Fry opined, poor nations were “being offered 30 pieces of silver to bargain away our future”.

While the deal "recognized the need to keep warming below 2 degrees but does not commit to do so,” observed Oxfam’s Jeremy Hobbs. In any case, after a group of scientists analyzed the emissions reduction commitments made by individual nations prior to and during the Copenhagen conference they found that they would lead to approximately 3.9°C warming by 2100. Considering that Africa gets one and a half times hotter than the global average, this means the mercury will rise to 6C on the continent. No wonder Lumumba Dia-ping spoke of “an incineration pact”!

Even worse, a new study suggests that increases in atmospheric CO2 could have significantly larger effect on global temperatures than previously thought. A relatively small rise in CO2 levels was associated with substantial global warming 4.5 million years ago when the global temperature was 2 to 3 degrees Celsius higher than today despite CO2 levels being similar. In the words of Mark Pagani, associate professor of geology and geophysics at Yale and lead author of the study, “since there is no indication that the future will behave differently than the past, we should expect a couple of degrees of continued warming even if we held CO2 concentrations at the current level,”. The Copenhagen Agreement clears the way to raising them.

Given that developing nations were being offered a very, very bad deal, one would expect that they wouldn’t take it. One would be wrong. President Nasheed, of “We shall not die quietly” fame, whose country will be one of the first to be swallowed up by the rising sea, declared that the best chance of survival now lay in accepting what was on the table and then working to make it much more ambitious -- and legally binding -- by the end of 2010. Bangladeshi prime minister Sheikh Hasina, termed it “a reasonable conclusion” even though her country has been worst-hit by global warming and a mere 1M rise in sea level could turn 20 million of her subjects into climate refugees.

In the 1992 Rio Earth Summit, climate change was for the first time identified as one of the world's major problems and 2C established as a threshold level of temperature increase. 17 years later, the rift between rich and poor, between those who have continued to benefit from pollution and those suffering its consequences, still militates against a unified global approach to the problem.

Perhaps the best legacy Copenhagen could hope for would be if the Accord, flawed though it is, reaffirmed a global consensus on the need to do something about climate change. After all, “no one was arguing with the science,” as Prof. Mathai observed. If that is the case, then wealthy countries would have been put on notice that they could face a serious insurrection in 2010 if they do not come through with a more ambitious deal.

Déjà vu is the experience of feeling sure that one has witnessed or experienced a new situation previously although the exact circumstances of the previous encounter are uncertain. The inauguration of the East Africa Community’s Common Market as a step on the way to an envisaged political federation induced just such a feeling. The thing is, we have been here before.

The five Presidents congregated in Nairobi mirrored another, albeit smaller, gathering in the same city 46 years ago. In June, 1963, the leaders of the newly independent states of Kenya, Uganda and Tanganyika declared, “… we believe a political federation of East Africa is desired by our peoples. There is throughout East Africa a great urge for unity and an appreciation of the significance of federation.”

The three were being more than a little disingenuous. The political federation of East Africa has never been a people-driven affair. From the start it was a colonial project opposed by the very people in whose name it was done. Which is surprising, since we were East Africans long before we became Kenyans and Ugandans and Tanzanians.

The integration of the region began with the building of the Uganda Railway in 1895. This was rapidly followed by the creation of the East African Common market which started in 1900 with a customs arrangement between British East Africa (now Uganda and Tanzania) and German East Africa (now Tanganyika), the establishment of a Court of Appeal for East Africa in 1902, creation of the East African Currency Board in 1905 and a Postal Union in 1911. In 1917, the British colonial administration established a Customs Union and by 1920, when the Kenya Colony was formally established, the EACB was already issuing a single regional currency, the East African Shilling.

By independence, we already had more than 40 different East African institutions covering areas such as research, social services, education/training and defence among others. This lead Tanganyikan President, Julius Nyerere, to observe in March 1963, that, “a federation of at least Kenya, Uganda and Tanganyika should be comparatively easy to achieve. We already have a common market, and run many services through the Common Services Organisation…. This is the nucleus from which a federation is the natural growth.”

Yet 2 years later, the common market would disintegrate following Tanzanian proposals that each country establish separate currencies and banks. Frenzied actions to save the federation project, including the promulgation of a formal Treaty for East African Co-operation and the setting up of the East African Community, would come to naught as the EAC itself collapsed in 1977 and was formally wound up in Arusha on 14th May 1984. On the latter occasion Nyerere declared that he could not “pretend that this is a very proud day for East Africa”.

What went wrong? Quite simply, the leadership failed to carry the people along. The project was a forced marriage that made sense to and benefitted the elite few but was viewed with suspicion by and never properly explained to the common citizenry. As early as 1925, when the British government established an East Africa Commission chaired by Colonial Secretary, W. G. Ormsby-Gore to solicit views from Africans, people of Asian descent and Europeans on federation, the idea found “little, if any, support ... and in some quarters …definite hostility.”

The commission “received a memorandum against federation from the King and the native government of Buganda, and discussions which had taken place in parts of Kenya immediately prior to our arrival revealed that the suggestion was viewed with more than a little suspicion by all sections of European opinion in Kenya. All shades of opinion in Zanzibar are hostile to federation and we also received representations against federation from various Indian Associations throughout the three northern territories”. Africans were particularly suspicious of the motives and intentions of the colonists. In 1927, yet another commission, this time chaired by Sir Hilton Young, received a memorandum from the Kikuyu Central Association rejecting the idea of federation.

Without the bulwark of popular support, at independence the colonial enterprise of federation became hostage to the petty personal rivalries and jealousies of the region’s new class of leaders. By 1977, it resembled more a clash of heads than a union hearts.

Its current reincarnation is proving to be little different. A recent report notes that the majority of East Africa's 126 million people are not aware of the benefit of regional integration, let alone the process with most citizens viewing it as an elite project."The project has a lot of goodwill from ordinary citizens but lack of active involvement has left it standing solely on the political pillar, without the critical social and economic relevance that would make it a reality in people's lives," Prof Regina Karega, one of the scholars who conducted the study said. This lack of an integration of the peoples was in evidence in September 2008, when Kenyans kicked up a fuss over reports that the US President George W. Bush and Tanzanian president, Jakoyo Kikwete had discussed "instability in Kenya. It was further exposed earlier this year when Kenyans ripped up sections of the Uganda railway and openly called war over Ugandan military occupation of Migingo Island (population:250), an insignificant piece of rock in Lake Victoria.

It is acknowledged in the appellations of the organs of integration. In much of the rest of the world the name of the regional grouping tends to reflect the stage of integration which has actually been attained. African regional groupings and the EAC in particular, have used terms such as “Community”, and “Common Market” in their names more as a reflection of elite aspirations. Thus our customs union meant neither the abolition of internal tariffs nor synchronization of external ones, disputes over fishing rights and work permits are a feature of our “common markets”, the East African passport is only valid for travel within what is supposed to be a borderless East Africa and our federating countries still have territorial disputes.

The exclusive focus on reaching political and macro-economic milestones has left the process blind to the needs of the common man. While economic benefits of integration are touted (greater bargaining power in international arena; the larger market makes for a more attractive foreign direct investment (FDI) destination), ask any common East African whether last week’s ceremony means he or she can traverse the region seeking employment and you will probably get a blank stare. An East African Parliament and envisioned Presidency are not matched by moves towards a common East African identity and citizenship. In fact, they are assumed to be the same things. The legality of belonging to the EAC is thus confused for the feeling of true community.

In the 1950s, the then leader of Ghana, Nkwame Nkrumah, declared “seek ye first the political kingdom and the rest will follow” arguing that African countries should right away integrate politically. The East African leadership seems to have taken this literally. The assumption that they can create an East African kingdom to which the people will thereafter be added is dead wrong and needs to change. And there are signs that it is. Last week, The EastAfrican reported reported that the partner states are to establish integration centres at border points to sensitize the citizenry on the benefits of regional assimilation and that Kenya's EAC Ministry would use mobile phones to educate up to 17 million people on the Common Market Protocol. Hopefully this time the reality will prove different.

Wednesday, December 16, 2009

There is no nice way to say it. The Harmonized Draft Constitution of Kenya is long. Very long. Its 165 pages contain more than 60,000 words. The Table of Contents alone is 11 pages. In contrast, the US constitution, the oldest such national document in continuous existence, is only 7800 words. In fact, across the globe, loquacious constitutions seem to be all the rage. In each decade since 1945, the average length of national constitutions has increased by between 1300 and 1900 words. We may not have scaled the heights of the Indian document (whose English translation, at 117,369 words, is the longest national constitution) or that of the State of Alabama (its 357,157 words make India’s look like a model of brevity) but there is cause for concern.

The most obvious problem is that a populace not renowned for its literary appetite, and busied by the daily struggle to keep body and soul together, will be unlikely to put much effort into reading and understanding it. Its very length and the complexity of its legal language will militate against this. James Madison, principle architect of the US Constitution said it best. "It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood."

The constitutional fat strangles the common heart. It is hard to imagine the passion and patriotism that is inspired by

We, the people of Kenya—

ACKNOWLEDGING the supremacy of the Almighty God of all creation:

HONOURING those who heroically struggled to bring freedom and justice to our land:

PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation:

RESPECTFUL of the natural environment that is our heritage, and determined to sustain it for the benefit of future generations:

COMMITTED to nurturing and protecting the well-being of the individual, the family, communities and the nation:

RECOGNIZING the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law:

EXERCISING our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution:

ADOPT, enact, and give to ourselves and to our future generations, this Constitution.

However, this is not the gravest problem. According to Donald S Lutz, professor of political science at the University of Houston, one of the reasons for replacing a constitution is that it “may have been changed so many times that it is no longer clear what lies under the encrustations, and clarity demands a new beginning.” This is clearly the case with the current constitution of Kenya. It suffers from a surplus of “encrustations” and these have everything to do with its length.

A study of amendments to the 50 US state constitutions between 1789 and 1991 found a strong correlation between the length of a constitution and its average annual rate of amendment. It is not that amendments tend to fatten constitutions (our current constitution, for example, has lost over 18000 words since 1963, despite undergoing numerous amendments). Rather, the interesting bit is that the longer the original length of a constitution, the more likely it is to experience a high rate of amendment. This is principally because the more provisions a constitution has, the more targets there are for amendment. And, of course, it will tread on more toes and attract greater hostility.

Our independence constitution again bears this out. At 117 pages, its 58,000 words were not exactly a picture of shyness. It has since been amended it at a rate 7.5 times faster than its much slimmer US cousin. The monstrosity we have today is the result. The Committee of Experts though, want us to enact an even longer one this time. Why?

Do the extra pages come from expanded provisions governing social, economic and cultural relations? Not likely. A study by H.Van Maarseveen, and Ger van der Tang, published in 1978 found that the length of a constitution was not determined by the inclusion of such provisions; in fact constitutions with these provisions were actually shorter on average than those without. Perhaps surprisingly, it was the enumeration of these rights in a separate chapter that led to an increase in constitutional length and the draft constitution doesn’t have one.

Or perhaps the blabber results from efforts to be precise. Since over time all governments seek broader powers than first authorized, constitutions should be crafted in a way that carefully enumerates and thereby limits their powers. However, each generation has limited knowledge. A constitution, while enacted by a particular generation of citizens, must allow for evolving norms as a result of succeeding generations having greater understanding. In short, it is a living document. Its language should be as precise as necessary to contain the government while remaining vague enough to allow succeeding generations to interpret it to suit their needs. Too restrictive and you strangle it. It is this balancing act that is the genius of the US Constitution. It has never gone out of date. Its vagueness gives rise to new interpretations, such as the constitutional right to privacy which is nowhere expressly asserted, without having to resort to amendments (which in any case should be rare and difficult).

As in many things, brevity in constitution-making is a thing of beauty. So as we faithfully slog through the draft, let us look for ways we can cut the calories. May it turn out like the mini skirt: long enough to cover the essentials, but short enough to keep your interest.